医疗损害责任中比例责任的合理适用研究

Abstract

The Civil Code, which came into effect in China in 2021, clearly stipulates the liability for medical damage, and then a large number of medical disputes have occurred in the past two years, which requires theoretical research to respond in time. Due to the high professionalism and complexity of medical activities, patients' own special physique, primary diseases and other related situations often appear in medical damage, which makes it difficult to directly judge the causal relationship in medical damage liability. The court needs to allocate the responsibility in a case when the causal relationship between facts is unknown, which may easily lead to unfair and just judgment results. In view of the above phenomenon, the theory of proportional liability is widely used in judicial practice at home and abroad, and it is also supported by the legislative and academic circles. Of course, before the application of proportional liability, the following problems must be solved theoretically: how to understand the proportional liability in tort law from the doctrinal level, the rationality of the application of proportional liability, and the construction of specific rules for the application of proportional liability. Proportional liability is that the infringer takes responsibility based on the possibility of the damage caused by the infringement. At present, this theory has developed to the degree of rational construction by introducing probability causality and combining the discretion of damage. This paper adopts the methods of normative research, empirical research and comparative law research, trying to clarify the core connotation and theoretical development of proportional liability, demonstrating the rationality of its existence from the legal basis, theoretical value and practical significance of the application of this theory, and finally devoting itself to constructing systematic and complete applicable rules of proportional liability, making necessary preparations for legislation, so as to solve complex and difficult related problems in practice.
 
 2021年中国开始施行的《民法典》明确规定医疗损害责任，随之近两年的医疗纠纷案件大量发生，需要理论研究予以及时回应。由于医疗活动具有高度专业性和复杂性，医疗损害中又经常出现患者自身特殊体质、原发疾病等相关情况，导致医疗损害责任中的因果关系难以直接判断。法院需要在事实因果关系不明的情况下进行个案中的责任分配，容易导致判决结果不够公平正义。针对上述现象，国内外司法实务中大量采用比例责任理论，该理论也受到立法和学理界的支持。当然，在比例责任适用前，必须在理论上解决以下问题：如何从教义学层面理解侵权法上的比例责任、比例责任适用的合理性问题、比例责任适用的具体规则构建问题。比例责任是侵权人基于侵权行为对损害结果造成的可能性大小来承担责任，目前该理论已经发展到通过引入概率因果关系并结合损害的酌定来理性建构的程度。本文采用了规范研究、实证研究、比较法研究等方法，试图厘清比例责任的核心内涵与理论发展脉络，从该理论适用的法理基础、理论价值、实践意义来论证其存在的合理性，最终致力于构建系统完整的比例责任适用规则，为立法进行必要的准备，从而解决实务中复杂疑难的相关问题。